Catholic Charities USA (CCUSA) and the United States Conference of Catholic Bishops Migration and Refugee Services (USCCB/MRS) respectfully submit this comment on the proposed Executive Office for Immigration Review (EOIR) Fee Review, published on February 28, 2020. We are concerned about the proposed fee changes in the published notice and request that EOIR withdraw these proposals that make appeals, applications, and motions less accessible to respondents and could also negatively impact Catholic institutions who work with immigrants.

CCUSA is a national membership organization representing more than 166 diocesan Catholic Charities member agencies, which operate more than 2,600 service locations across the country. Their diverse array of social services reached more than 12.5 million individuals in need last year, and included immigration and refugee services. Our Catholic heritage includes a scriptural call to provide hospitality to newcomers as if welcoming Christ Himself. The Catholic Church, like our nation as a whole, finds its identity and roots in various immigrant communities. We affirm the inherent dignity bestowed by God on every human person, including immigrants and refugees, no matter the circumstances that compel a person to begin a new life in our community.

The USCCB is a nonprofit corporation whose members are the active Catholic bishops of the United States. USCCB advocates and promotes the pastoral teachings of the U.S. Catholic bishops in diverse areas of the nation’s life. For years, USCCB’s Committee on Migration has collaborated with the U.S. government to welcome and provide direct services to unaccompanied immigrant children, U.S. and foreign-born victims of human trafficking and refugees. USCCB/MRS advocates on behalf of these and other immigrant populations to advance the migration policy priorities of USCCB’s Committee on Migration.

CCUSA and USCCB/MRS oppose these dramatic increases in EOIR fees associated with filings for the Board of Immigration Appeals (BIA) appeals, cancellation of removal or suspension of deportation applications, asylum applications, and motions to reopen or reconsider before the immigration courts or the BIA. The proposed fee increases for most applications are unconscionably high. The greatest increase to appeal the decision of an immigration judge is nearly 800 percent, from $110 to $975. This astronomical fee increase places the pursuit of justice outside the grasp of even families with moderate incomes. Likewise, motions to reopen or reconsider before the BIA would rise to $895. The proposed fee levels are unreasonable and disproportionate to comparable fees in federal courts. The proposed fees also make it increasingly difficult to access justice.

EOIR should ensure that appeals, applications, and motions remain accessible and affordable. These filings are essential to upholding the principles of access to justice and the right to due process. Those who cannot afford these fees may be unable to apply for relief or appeal erroneous decisions. Respondents have only 30 days after an immigration judge’s decision to file an appeal, which is a very short timeframe to obtain the $975 fee. It is not uncommon for immigration judges to make errors and these changes would significantly hinder the applicant’s ability to correct errors and seek justice. We suggest that EOIR withdraw the proposal in its entirety. However if EOIR imposes increased fees, we formally recommend that EOIR should clarify that if a request by an individual for a fee waiver is denied, the 30-day filing deadline will be restarted from the date of that denial.

In 2018, 108 Catholic Charities agencies helped welcome and integrate over 300,000 immigrants, refugees, and asylees. This fee increase amounts to a denial of due process for the clients Catholic Charities serve. Clients first have to file with the EOIR for either an appeal or case re-opening before arguing their case in federal immigration court. The sheer amount of the fee increase is an abridgment of the constitutional right to due process based on income. These astronomical fees will lead to the inability to file relief applications, petitions, motions or appeals and may lead to deportation to countries which immigrants do not know or have ties to, particularly for Deferred Action for Childhood Arrivals (DACA) recipients, among others. Vulnerable populations such as domestic violence victims, unaccompanied minors and survivors of torture will also be harmed by these proposed fee increases. The ramifications can lead to a lifetime of mental and emotional harm and family separation. Increasing the fees will also have an impact around the compliance with U.S. immigration law that all individuals see to the extent that they are able. By making such costs prohibitive, you discourage people with legitimate claims from participating in our independent judicial process.

Our agencies serve low-income immigrants at minimal cost across the country with high quality and accredited immigration legal services. Our agencies operating in expensive localities, such as Catholic Charities San Diego, recognize how the proposed fees and the high cost of living in locations like southern California will disproportionately affect low-income families struggling to make ends meet while pursuing their immigration cases. We are very worried that unscrupulous actors will utilize these proposed fee increases to attempt to impose even higher financial demands on vulnerable immigrant communities. Economic realities may lead these immigrants to use notarios against their best interests. Making immigration appeals and court filings more costly will result in less accountability and lead to an increase in ineffective and harmful notario services that prey on immigrants.
Individuals who otherwise may prevail with their motion or appeal will be prevented access to justice due to these proposed fees. These proposed fees heighten low-income immigrants’ inability to pursue their case. Many of the people most in need of access to our judicial system do not have enough income to pay for representation and the new exorbitant fees. While fee waivers are available, they are not guaranteed.

While the proposed rulemaking states that current EOIR fee waiver policies would remain available, it does not acknowledge that with fees rising as much as 800%, the number of fee waiver requests will also increase dramatically. Respondents’ increased reliance on fee waivers under this proposal would heighten the burden on judges to adjudicate fee waiver requests. The increasing number of fee waiver requests would divert valuable judicial resources to adjudicating fee waivers rather than substantive claims at a time when the court already has a backlog of more than a million cases. Keeping EOIR fees at a level that most respondents can afford ensures that fee waivers do not become necessary for nearly all filings and do not become a source of increasing backlogs.

Fee waivers may be granted for detained clients, but they face extreme obstacles in the current immigration processes that are drastically heightened if a fee waiver is denied. The proposed fees would only exacerbate the pursuit of justice for detained individuals, particularly for those denied a fee waiver. A detained person’s only access to income is $1 a day for a volunteer job while in detention. If they are quarantined during the current COVID-19 global pandemic or unable to work for other reasons, they will have further limited access to earning finances for their case and well-being. Daily earnings of $1 are small amounts but necessary for immigrants to buy telephone “minutes” to make personal calls or buy necessary items in the commissary. Detained individuals are already at a disadvantage in obtaining counsel and evidence. The proposed fee increase poses an extreme and unnecessary disadvantage to continue their case. Without financial means from family or friends in the U.S., they are likely out of options.

EOIR also plans to charge a $50 fee for asylum applications for the first time ever; DHS recently proposed the same fee for affirmative asylum applications. The United States has a moral imperative to accept asylum seekers as well as obligations under domestic and international laws. As a signatory to the 1967 Protocol of the 1951 Convention Relating to the Status of Refugees, the United States has an obligation to accept asylum seekers who seek protection. The administration appears to acknowledge that sending those facing persecution into harm’s way because they cannot pay a fee would run afoul of international law by allowing respondents to submit an I-589 without a fee if they seek only withholding of removal or protection under the Convention against Torture (CAT), but not asylum. These lesser forms of relief are in no way comparable to asylum, because they do not have a path to lawful permanent residence or citizenship. Furthermore a respondent who wins withholding or CAT protection will likely face permanent separation from family members because there is no provision for them to apply for family members as derivatives.
Refusing asylum applicants for the inability to pay would effectively cause the United States to break its treaty obligations and flies in the face of the basic intent of the 1980 Refugee Act. In fact, the vast majority of countries that are signatories to the 1951 Convention or 1967 Protocol do not charge a fee for an asylum application. First-time asylum seekers are ineligible for a work permit, so charging them $50 to simply access asylum protections may force them to depend on charity or choose between feeding their families and paying this fee. This uncertainty may result in asylum seekers renouncing this protection altogether. The United States has long been a world leader in refugee protection. If the United States imposes a filing fee for asylum, other countries may begin to do the same. The United States should adhere to its international and domestic obligations and not refuse asylum seekers their chance to seek protection simply for the inability to pay.

We are also concerned that such significant changes are being proposed with only a 30-day comment period, rather than the traditional 60 days. EOIR acknowledges that it has not conducted a fee study in 33 years. Further, our nation’s response to the COVID-19 workforce limitations warrant additional time for concerned advocates and practitioners to review these proposed fee changes. Since EOIR has not changed its fees in over three decades, it is imperative that the public be granted sufficient time to understand the reasons and methodology EOIR used to arrive at such substantial increases, and how EOIR plans to ensure that vulnerable, low-income noncitizens will be able to assert their rights in immigration court and before the BIA.
CCUSA and USCCB/MRS urge EOIR to withdraw its proposed fee increases and maintain its current fee levels for appeals, applications, and motions. EOIR has historically drawn the majority of its funding from congressional appropriations. Unlike USCIS, EOIR is not a fee-funded agency. The rulemaking never explains why EOIR needs this additional money, nor does it state that it cannot cover its operating costs through congressional appropriations, or that it must be self-sustaining and why. Any increased funding that EOIR requires should be requested through the appropriations process as it has done in previous years.
Thank you for the opportunity to submit comments on the proposed fee schedule. Please do not hesitate to contact our offices should you have any questions.

[2] See, e.g., Executive Order 12866 (Sept. 30, 1993) (stating that agencies should allow “not less than 60 days” for public comment in most cases, in order to “afford the public a meaningful opportunity to comment on any proposed regulation”); see also Executive Order 13563 (January 18, 2011) (stating that “[t]o the extent feasible and permitted by law, each agency shall afford the public a meaningful opportunity to comment through the Internet on any proposed regulation, with a comment period that should generally be at least 60 days”).

On behalf of the U.S. Conference of Catholic Bishops’ Committee on Migration (USCCB/COM), Catholic Health Association of the United States (CHA), Catholic Charities USA (CCUSA), and the Catholic Legal Immigration Network, Inc. (CLINIC), we write to urge DHS and its components to remove barriers to healthcare access so that immigrants may safely comply with government recommendations during this global pandemic health crisis. Specifically, we ask that DHS review all immigration enforcement activities and operations, particularly suspending activities at sensitive locations, and broadly release explicit guidance that the public charge rule does not apply during this COVID-19 outbreak. We strongly urge your agency and its components to take these additional measures in the interest of slowing the virus’s spread and protecting human life.

The Catholic Church’s deep concern for people seeking safety and access to healthcare during the COVID-19 pandemic is grounded in Catholic social teaching and our collective experience serving people in need. The core tenet of our faith is the belief that every human life is sacred. In promotion of that belief, we advocate and provide service for all, but especially the most vulnerable: the unborn, the poor, the homeless, immigrants and refugees, the elderly and the mentally and physically infirm. As reflected in Catholic teachings, the right to life extends to life-saving protection and the right to seek safety and to care for one’s family.

During this global pandemic and national emergency, access to treatment and care for immigrants, including undocumented individuals, is critical to tracking and responding to the crisis. Removing barriers to testing and treatment not only saves lives but keeps all Americans safer.

In this context, we make the following recommendations to help ensure that no human life is placed unnecessarily at risk at this time:

DHS Should Ensure No Immigration Enforcement Actions Occur at Sensitive Locations and Robustly Communicate This Policy

The U.S. and Immigration and Customs Enforcement (ICE) and U.S. Customs and Border Protection (CBP) “Enforcement Actions at or Focused on Sensitive Locations” memo includes, but is not limited to, hospitals as a sensitive location.1 DHS has communicated that “ICE does not conduct operations at healthcare

facilities. Anyone in need of medical care should seek care[.]”2 This suggests that DHS is appropriately clarifying the understanding of sensitive locations apply to all healthcare facilities during this global pandemic. Continuing to update, revise and publicize this guidance as testing facilities are potentially implemented at non-traditional healthcare locations, will be critical to removing barriers to testing.

Unfortunately, there are recent news reports of ICE agents following an undocumented immigrant to a Scranton, Pennsylvania, area hospital.3 Should more reports of ICE agents conducting operations at healthcare facilities emerge throughout the country, a chilling effect on immigrants seeking medical assistance is all but inevitable. While we note that the ICE and CBP Sensitive Locations memorandum describes exceptions for enforcement due to “exigent circumstances,”4 at this time we urge you to cease any enforcement at sensitive locations due to the heightened public health needs.

Additionally, DHS and the U.S. Citizenship and Immigration Services (USCIS) should share this information through a robust public messaging campaign that is accessible in multiple languages and includes visual graphics for those who may be illiterate. Healthcare facilities, places of worship, and other agencies should not be linked to immigration enforcement activities. People must feel safe to access critical services such as testing and treatment for the virus, pastoral care, and legal and social services.

DHS Should Issue and Broadly Distribute Explicit Guidance that the Public Charge Rule Does Not Apply During this COVID-19 Outbreak and Provide Necessary Protections and Extensions to Immigrants Affected by USCIS Closures

USCIS recently posted an update to its public charge webpage5 with information about how it will consider health issues related to the COVID-19 contagion in the context of public charge, stating that it will not consider testing, treatment, or preventative care (including vaccines, if a vaccine becomes available) related to COVID-19 as part of a public charge inadmissibility determination. As of the date of this writing, USCIS has not shared this information broadly through its email lists or social media feeds. DHS should issue an additional statement clarifying explicitly that the public charge rule does not apply during this COVID-19 outbreak. Further, DHS and USCIS should continue to share this information through a robust public messaging campaign that is accessible in multiple languages.

We also note the closures of the USCIS offices as a public health precaution. In response to the USCIS office closures we request extensions for certain visa categories, including DACA renewals, given the substantial impact and harm the closures could pose.

DHS Should Review All Immigration Enforcement Activities and Operations

While we acknowledge the important initial steps of ensuring no enforcement activities at sensitive healthcare facility locations and issuing clarified public charge information, DHS should reconsider all deportations, immigration arrests, mass raids, detentions and enforcement actions and give priority to removing barriers to testing, treatment, and protecting public health. An effective community-based response to COVID-19 requires all people living within our borders to contribute to the common good. Barriers to treatment or testing, as well as causing fear to stay home to care for children, will undermine ongoing healthcare efforts. Therefore, we urge DHS to review all of its practices and give the highest priority to preserving life and safety.

We remain grateful for your vigilant efforts to respond to this global crisis and request your constant consideration of the vulnerable communities we serve.

2 @SpoxDHS, (Heather Swift). “Dishonest fear mongering is dangerous to the immigrant community. The disinformation campaign pushes a false narrative when people are looking to elected officials for info. ICE does not conduct operations at healthcare facilities. Anyone in need of medical care should seek care.” 5 March 2020, 9:46 PM: https://twitter.com/SpoxDHS/status/1235758584073465857.

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